Houston cop suspended 45 days for excessive force in New...

1of 4Houston Police Officer Ken Nealy has been suspended 45 days for using unnecessary force while arresting a man on New Year's Eve. Photo: Dale Lezon

2of 4Houston Police Chief Art Acevedo explains what led up to the fatal shooting of a kidnapped man by an FBI agent during a press conference Tuesday, Jan. 30, 2018, in Houston. Acevedo explained the FBI SWAT team agent breached through a window with the front of his rifle, and felt pulling on the weapon from someone inside the room. The agent, fearful to lose his weapon decided to fire the rifle, shooting the kidnapping victim, Ulises Valladares.Photo: Godofredo A. Vasquez, Houston Chronicle

A Houston police officer has been suspended for using unnecessary force while arresting a man who prompted concerns about a possible Las Vegas-type shooting plot on New Year’s Eve after police found several firearms in his downtown highrise hotel room.

Disciplinary records released by the city this week in response to an open records request show Chief Art Acevedo suspended Ken Nealy — a widely respected robbery detective who is also one of the vice presidents of the Houston Police Officers’ Union — for 45 days without pay.

Acevedo was not available for comment. Nealy’s union attorney, Bob Armbruster, declined to discuss the matter.

“This case is over and completed with and we have no further comment,” said HPD officer Joe Gamaldi, who is president of the police union.

Since taking command of the Houston Police Department in December 2016, Acevedo has handed down at least 188 suspensions, according to disciplinary files reviewed by the Chronicle. Two of those — including Nealy’s suspension — were for incidents where Houston officers were found to have improperly used force in off-duty incidents.

Nealy and other HPD officers arrested 49-year-old Russell Lawrence Ziemba for refusing to leave the Regency Hyatt Hotel on New Year’s Eve, after being called to the hotel over Ziemba’s allegedly drunken behavior.

In the lobby, authorities later said, Ziemba refused to put his hands behind his back and struggled with police, who claimed he kicked one of the officers before finally being subdued. The altercation was captured on surveillance cameras. Nealy was working a department-approved extra job at the hotel.

When officers escorted Ziemba back to his room, they found his .12 gauge shotgun, a semi-automatic Glock .380 pistol and his AR-15 rifle, raising concerns about a possible mass shooting like the one in Las Vegas last year.

According to the May 1 suspension notice, Acevedo disciplined Nealy for using unnecessary physical contact, failing to thoroughly document the use of force against Ziemba in his original incident report and for failing to search an intoxicated subject for weapons. City records show Acevedo previously disciplined one other officer for failing to search a prisoner who had a gun in his possession.

The four-page disciplinary letter does not describe Nealy’s actions in detail, but notes that officers “shall avoid all unnecessary physical contact with all prisoners, suspects, and other citizens,” and that unnecessary contact may include “pushing, shoving, dragging, punching, or kicking.”

Ziemba was initially charged with assaulting a public servant — a felony — and a misdemeanor trespassing charge. In April, a Harris County grand jury cleared Ziemba of felony charges after watching surveillance video of the incident. He still faces a misdemeanor trespassing charge and a misdemeanor charge from a previous incident for carrying guns in plain sight in his vehicle.

The Civil Rights Division of the Harris County District Attorney’s Office reviewed the use of force incident and presented the evidence to a grand jury, which determined criminal charges against Nealy were not warranted, said DA spokesman Dane Schiller.

The Chronicle requested a copy of the surveillance video of Ziemba’s arrest from the DA’s office, which has asked the state attorney general's office for permission to deny the request, citing an exemption to open records law that allows prosecutors to withhold information pertaining to the detection, investigation or prosecution of a crime.

Danny Easterling, Ziemba’s defense attorney, said his client had been upset but compliant at the time of the altercation — and disputed whether he’d assaulted the officer.

Nealy “lost patience with my client when he was trying to leave,” Easterling said. “It puts his credibility about the entire trespassing case in question — particularly the element of him refusing to leave the hotel.”

In mid-April a judge ordered Ziemba’s firearms returned to his attorney’s care. Easterling said he would attempt to convince the DA’s office to dismiss the trespassing charge due to insufficient evidence. Ziemba’s next court date — for the trespassing charge and previous misdemeanor weapons charge — is Friday.

Easterling said that Ziemba, a Tomball resident and Gulf War veteran, had been depressed and suffering from post-traumatic stress, which led him to abuse alcohol. Ziemba is now in drug and alcohol treatment and has a job, he said.

St. John Barned-Smith joined the Houston Chronicle in 2014 and covers public safety and major disasters, including floods, bombings and mass shootings. Barned-Smith came to the Chronicle after a stint in the Peace Corps and after reporting in Philadelphia and suburban Maryland. Follow him on Twitter or email tips to st.john.smith@chron.com.